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Headquarters, San Antonio Air Logistics Center, Kelly Air Force, Texas (Activity) and American Federation of Government Employees, Local 1617, AFL-CIO, San Antonio, Texas (Union)

[ v06 p292 ] 06:0292(54)AR
The decision of the Authority follows:

6 FLRA No. 54
HEADQUARTERS, SAN ANTONIO
AIR LOGISTICS CENTER, KELLY
AIR FORCE BASE, TEXAS
Activity
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1617, AFL-CIO
SAN ANTONIO, TEXAS
Union
Case No. O-AR-96
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR CHARLES R. MILENTZ FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).
ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE OVER THE
SURVIVAL OF SPECIFIC PROVISIONS OF A 1975 MEMORANDUM OF AGREEMENT
BETWEEN THE PARTIES WHICH PROVIDED COVERAGE TO ALL EMPLOYEES IN THE
SECURITY POLICE OPERATIONS BRANCH AT KELLY AIR FORCE BASE, TEXAS.
PURSUANT TO THE MASTER LABOR AGREEMENT ENTERED INTO BETWEEN THE AIR
FORCE LOGISTICS COMMAND AND THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES FOLLOWING A UNIT CONSOLIDATION IN 1978, LOCAL AGREEMENTS SUCH
AS THE MEMORANDUM OF AGREEMENT INVOLVED HEREIN WERE TO BE REVIEWED AT
EACH AFLC ACTIVITY TO DETERMINE WHICH SECTIONS OF SUCH AGREEMENTS
SURVIVED AS SUPPLEMENTS TO THE MASTER AGREEMENT. IT WAS DURING SUCH
REVIEW THAT THE DISPUTE HEREIN AROSE AND WAS ULTIMATELY SUBMITTED TO
ARBITRATION.
THE ISSUE AGREED UPON BY THE PARTIES AS STATED BY THE ARBITRATOR WAS:
WHETHER ARTICLES X AND XXV OF THE POLICE UNIT MEMORANDUM OF AGREEMENT
SURVIVED AS
SUPPLEMENTS TO THE MASTER LABOR AGREEMENT BETWEEN THE AIR FORCE
LOGISTICS COMMAND (AFLC) AND
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE).
IN DETERMINING WHETHER THE PROVISIONS IN QUESTION SURVIVED, THE
ARBITRATOR LOOKED AT THE PROVISIONS OF ANOTHER LOCALLY NEGOTIATED
AGREEMENT, A 1977 MULTIUNIT CONTRACT, STATED THAT THIS MULTIUNIT
CONTRACT HAD SUPERSEDED THE 1975 MEMORANDUM OF AGREEMENT, AND FOUND
THAT
"THE (SECURITY POLICE OPERATIONS) UNIT, ALONG WITH OTHER UNITS AT KELLY
AFB THAT HAD INDIVIDUAL LABOR AGREEMENTS, ARE NOT INCLUDED IN ONE GS-WG
MULTIUNIT CONTRACT. . . . " IN MAKING THIS FINDING THE ARBITRATOR
REFERRED TO ARTICLE II OF THE MULTIUNIT CONTRACT WHICH PROVIDES IN
RELEVANT PART:
SECTION 2. THE EMPLOYER HEREBY RECOGNIZES THE UNION UNDER THE
PROVISIONS OF EXECUTIVE
ORDER 11491, AS AMENDED, AS THE EXCLUSIVE REPRESENTATIVE FOR ALL
EMPLOYEES IN THE WG AND GS
UNITS AS DEFINED BELOW.
A. THE WAGE GRADE UNIT DEFINITION IS: ALL EMPLOYEES IN THE WAGE
GRADE CLASSIFICATION,
KELLY AIR FORCE BASE, TEXAS, SERVICED BY THE SAN ANTONIO ALC
(FORMERLY SAAMA) CIVILIAN
PERSONNEL OFFICE EXCEPT THOSE EMPLOYEES SPECIFICALLY EXCLUDED IN
SECTION 10B OF EXECUTIVE
ORDER 11491 (AS AMENDED) AND THOSE EMPLOYED IN EXISTING UNITS OF
EXCLUSIVE RECOGNITION:
(1) SECURITY POLICE OPERATIONS BRANCH (AFGE LOCAL 1617)
(2) FIRE PROTECTION BRANCH (IAFF LOCAL F-89)
(3) MILITARY FOOD SERVICE BRANCH (AFGE LOCAL 1617)
(4) BASE RESTAURANT BRANCH (IAM & AW LOCAL 1025)
(5) NURSES (AFGE LOCAL 1617)
B. THE GENERAL SCHEDULE DEFINITION IS: ALL NONSUPERVISORY,
NONPROFESSIONAL CLASSIFICATION
ACT EMPLOYEES SERVICED BY THE SAN ANTONIO ALC (FORMERLY SAAMA)
CIVILIAN PERSONNEL OFFICE AND
EMPLOYED WITHIN THE COMMUTING AREA OF KELLY AIR FORCE BASE.
EXCLUDED: ALL SUPERVISORS AND
MANAGEMENT OFFICIALS, ALL PROFESSIONAL EMPLOYEES, ALL GUARDS, ALL
EMPLOYEES ENGAGED IN
CIVILIAN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AS
DEFINED IN SECTION 10B OF
EXECUTIVE ORDER 11491 (AS AMENDED) AND ALL EMPLOYEES INCLUDED IN
EXISTING UNITS OF EXCLUSIVE
RECOGNITION WHICH ARE SECURITY POLICE, FIREFIGHTERS, NURSES, BASE
RESTAURANTS, AND MILITARY
FOOD SERVICE EMPLOYEES. (GS AND WG UNIT EMPLOYEES ON STATESIDE AND
OVERSEAS TDY WILL ALSO BE
COVERED BY THE MULTIUNIT CONTRACT.)
THIS AGREEMENT IS APPLICABLE ONLY TO EMPLOYEES IN THE ABOVE DESCRIBED
UNITS OF
RECOGNITION. THE AGREEMENT IS A MULTIUNIT AGREEMENT.
SETTING FORTH AND REFERRING SPECIFICALLY TO THE FIVE LISTED UNITS IN
SECTION 2.A AS "UNITS INCLUDED" IN THE MULTIUNIT CONTRACT, /1/ THE
ARBITRATOR CONCLUDED THAT SINCE THE SECURITY POLICE OPERATIONS BRANCH
WAS "INCLUDED" UNDER THE 1977 MULTIUNIT CONTRACT, ARTICLES X AND XXV OF
THE 1975 MEMORANDUM OF AGREEMENT "DID NOT SURVIVE AS A SUPPLEMENT TO THE
MASTER LABOR AGREEMENT." ACCORDINGLY, IN PART "2" OF HIS AWARD THE
ARBITRATOR DENIED THE GRIEVANCE. /2/
THE UNION FILED AN EXCEPTION TO PART "2" OF THE ARBITRATOR'S AWARD
UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE /3/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
CFR PART 2425. THE ACTIVITY DID NOT FILE AN OPPOSITION.
IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON A
NONFACT. THE UNION ARGUES THAT THE ARBITRATOR MADE "A GROSS MISTAKE OF
FACT" WHEN HE REFERRED TO AND CITED ARTICLE II OF THE MULTIUNIT CONTRACT
AS STATING THAT THE SECURITY POLICE OPERATIONS UNIT WAS INCLUDED IN ITS
COVERAGE. RATHER, THE UNION ASSERTS, ARTICLE II OF THE MULTIUNIT
CONTRACT "CLEARLY AND SPECIFICALLY" EXCLUDES THE SECURITY POLICE
OPERATIONS UNIT FROM COVERAGE. THE UNION CONTENDS THAT THIS FINDING IS
THE CENTRAL FACT UPON WHICH THE ARBITRATOR BASED HIS AWARD DENYING THE
GRIEVANCE AND THAT HE THEREFORE NEVER REACHED THE ISSUE BEFORE HIM OF
WHETHER CERTAIN PROVISIONS IN THE MEMORANDUM OF AGREEMENT SURVIVED.
THE AUTHORITY AGREES. UNDER SECTION 7122(A)(2) OF THE STATUTE, THE
AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT WHEN IT IS
DEMONSTRATED THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
DIFFERENT RESULT WOULD HAVE BEEN REACHED. UNITED STATES ARMY MISSILE
MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980);
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 987 AND
WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA, 3
FLRA NO. 89(1980). IN THIS CASE THE ARBITRATOR, IN DENYING THE
GRIEVANCE, STATED THAT "THE POLICE MEMORANDUM OF AGREEMENT . . . IS
SUPERSEDED BY THE GS-WG MULTIUNIT CONTRACT WHICH RECOGNIZES THE SECURITY
POLICE OPERATIONS OF AFGE, LOCAL 1617, AS ONE OF THE UNITS IN THIS
MULTIUNIT CONTRACT." HOWEVER, ON ITS FACE THE MULTIUNIT CONTRACT CLEARLY
AND UNEQUIVOCALLY EXCLUDES THE SECURITY POLICE OPERATIONS UNIT FROM ITS
COVERAGE. IT IS EQUALLY CLEAR FROM THE ARBITRATOR'S AWARD THAT THE
ARBITRATOR'S ERROR IN THIS REGARD WAS THE CENTRAL FACT UPON WHICH HE
BASED HIS DENIAL OF THE GRIEVANCE AND THAT HE THEREFORE NEVER COMPARED
THE DISPUTED SECTIONS OF THE MEMORANDUM OF AGREEMENT WITH THE MASTER
AGREEMENT TO REACH THE ACTUAL ISSUE PRESENTED BY THE PARTIES OF WHETHER
CERTAIN SPECIFIED PROVISIONS IN THE FORMER SURVIVED THE LATTER. /4/
FOR THESE REASONS, THE AUTHORITY FINDS THAT THE CENTRAL FACT
UNDERLYING PART "2" OF THE ARBITRATOR'S AWARD IN THIS CASE IS CONCEDEDLY
ERRONEOUS, AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
DIFFERENT RESULT WOULD HAVE BEEN REACHED AND THAT THEREFORE PART "2"
MUST BE SET ASIDE. THE AUTHORITY'S DECISION IN THIS REGARD IS LIMITED
TO THE FACT THAT THE ARBITRATOR BASED HIS AWARD ON HIS REFERENCE TO
ARTICLE II OF THE MULTIUNIT AGREEMENT AS INCLUDING CERTAIN UNITS WHICH
WERE CLEARLY EXCLUDED UNDER THAT ARTICLE. IN SO DECIDING, THE AUTHORITY
IN NO MANNER IMPLIES THAT, IF THE PARTIES CHOOSE TO RESUBMIT THIS MATTER
TO ARBITRATION, THERE MIGHT NOT BE SOME OTHER RATIONALE UPON WHICH AN
ARBITRATOR MIGHT FIND THAT THE MEMORANDUM OF AGREEMENT HAD BEEN SOMEHOW
SUPERSEDED OR OTHERWISE EXPIRED.
ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, PART "2" OF THE
ARBITRATOR'S AWARD IS HEREBY SET ASIDE.
ISSUED, WASHINGTON, D.C., JULY 20, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ ARBITRATOR'S AWARD AT 3 N. 4.
/2/ PART "1" OF THE ARBITRATOR'S AWARD DEALT WITH THE TIMELINESS OF
THE APPEAL TO ARBITRATION AND IS NOT AT ISSUE IN THIS CASE.
/3/ 5 U.S.C. 7122(A) PROVIDES:
(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--
(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;
OR
(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS;
THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR REGULATIONS.
/4/ WHILE THE ARBITRATOR ALSO REFERRED IN THE OPINION ACCOMPANYING
HIS AWARD TO THE EXPIRATION OF THE MEMORANDUM OF AGREEMENT IN FEBRUARY
1978, THE CONTEXT OF THIS STATEMENT IS UNCLEAR IN LIGHT OF THE
ARBITRATOR'S SPECIFIC FINDING THAT THE MEMORANDUM OF AGREEMENT WAS
SUPERSEDED BY THE 1977 MULTIUNIT CONTRACT. AS TO THE MEMORANDUM OF
AGREEMENT'S "EXPIRATION," THE UNION POINTS OUT THAT SINCE THE SECURITY
POLICE OPERATIONS UNIT WAS EXCLUDED FROM THE MULTIUNIT CONTRACT, THE
MEMORANDUM OF AGREEMENT COVERING THAT UNIT WOULD NOT HAVE EXPIRED BUT
WOULD HAVE REMAINED IN EXISTENCE PURSUANT TO SECTION 202.2 (H)(8) OF THE
REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS IN
EFFECT AT THE TIME OF THE CONSOLIDATION OF THE AFLC-WIDE UNIT IN JANUARY
1978.